Kerala High Court
State Of Kerala vs Amalraj @ Chandu on 23 February, 2010
Bench: R.Basant, M.C.Hari Rani
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Death Sentence Ref..No. 2 of 2008()
1. STATE OF KERALA
... Petitioner
Vs
1. AMALRAJ @ CHANDU
... Respondent
For Petitioner :.
For Respondent :.
The Hon'ble MR. Justice R.BASANT
The Hon'ble MRS. Justice M.C.HARI RANI
Dated :23/02/2010
O R D E R
R.BASANT & M.C.HARI RANI, JJ.
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D.S.R No.2 of 2008 &
Crl.Appeal Nos.1291/2008 and 268/2010
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Dated this the 23rd day of February 2010
JUDGMENT
BASANT, J.
Is the complicity of the appellants proved? Are there sufficient circumstances pointing to the guilt of the appellants/accused Nos.1 to 3? Is the conviction and imposition of sentence simultaneously under sections 302 and 201 IPC on the principal offenders justified? Is the imposition of a death sentence on the 18 year old first accused justified? These are the questions that arise for consideration before us.
2. Three accused persons have been found guilty, convicted and sentenced in a prosecution for criminal conspiracy to commit murder and allied offences (Section 120B read with Section 302 IPC), murder (Section 302 IPC read with Section 34 IPC), house trespass (Section 450 read with Section 34 IPC) and causing the evidence to disappear (Section 201 read with Section 34 IPC). The 1st accused has further been found guilty, convicted and sentenced under Section 302 read with Section 109 IPC also. The first accused faces a sentence of death, while D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 2 others face a sentence of imprisonment for life. The 4th person (4th accused) who faced indictment along with the appellants was found not guilty and acquitted. Appeals are preferred by the first accused (Crl.Appeal No.1291/2008) and accused Nos.2 and 3 (Crl.Appeal.No.268/2010). The death sentence imposed by the court below has been referred to this Court for confirmation and the same has been numbered as D.S.R.No.2/2008. We are proceeding to dispose of the two appeals and the D.S.R. by this common judgment.
3. To the charge/factual allegations first: Deceased M.P.Abraham was a Senior Advocate of standing at the High Court of Kerala. He was found dead in his Chamber at 7.15 p.m. on 12.7.2007. Six months prior to his death, he had engaged the young first accused as an assistant Clerk in his office. The young man (date of birth: 02.04.1989 as conceded by the prosecution) hails from the economically backward section of society. He was getting acquainted with the work in the office and the affluence of the Advocate, his master. He had criminal instincts in him, alleges the prosecution. He committed theft of MO28 mobile phone belonging to his master. He allegedly stole an ATM card of his employer. He was quick to realise the great potential for D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 3 criminal behaviour at his new place of work. He had access to the cheque books of his master. He allegedly stole a cheque leaf, forged it and clandestinely siphoned out an amount of Rs.30,000/- from his master's account. That was as per Ext.P18 cheque dated 16.5.2007. That his misdeeds were not detected allegedly encouraged him to continue his activities. He happened to realise that his master had a very big and fat amount in his bank account. He toyed with the idea of siphoning out funds from the bank account of his master. He knew that he will be caught, if he embarks on bigger game plans. He wanted such money; but wanted to avoid getting caught. Liquidating his master after siphoning out a big amount from his bank account was the idea that the devil planted in his young wicked brain. He contacted the 4th accused, a friend of his, who allegedly had connections with the underworld. The 4th accused in turn contacted his brother the 2nd accused. He brought in the 3rd accused. All the four accused allegedly conspired together. The 1st accused decided to siphon out funds before doing away with the deceased. After siphoning out the funds before giving time and opportunity to the deceased to detect the crime, he was to be liquidated by the conspirators. Precise date of the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 4 conspiracy is not specifically averred by the prosecution. According to the prosecution, the conspiracy was hatched some time after Ext. P18 cheque was fraudulently encashed on 16.5.2007 and before the date on which the deceased was murdered, i.e.,12.7.2007. The 2nd accused, one of the conspirators, wanted a mobile phone to execute the object of the conspiracy. MO28 which was stolen from the possession of the deceased by the 1st accused was handed over by the 1st accused to the 2nd accused after obtaining the connection in the name of a relative of the 1st accused. Accused Nos.2 and 3 thereafter started making arrangements to implement the object of the conspiracy. A motor cycle was requisitioned for the purpose, under Ext.P35. They procured MO1, a bundle of waste cotton allegedly for the purpose of suffocating and strangulating the deceased. They allegedly purchased plastic wire of which MO6 and MO13 are portions, for the purpose of being carried to the scene of the crime allegedly to tie the hands of the deceased and to immobilise him before they could attempt to kill him by passing electric current through him. They purchased an electric pin and wire of which MO11 is the remnant to facilitate such attempt to electrocute the deceased. They were ready for D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 5 the operation. With the help of the 3rd accused, the 1st accused withdrew an amount of Rs.3 lakhs on 10.7.2007 under Ext.P19 forged cheque. Before the actual criminal operation of the conspirators, on 11.7.2007, a further amount of Rs.5 lakhs was withdrawn by the 1st accused using the forged Ext.P20 cheque. Of the amount so siphoned out, Rs.6 lakhs was deposited by the 1st accused in the name of PW10 Sheeba in an account maintained by her. Accused Nos.1 to 3 allegedly converged at the office of the deceased Advocate on the evening of 12.7.2007. Accused Nos.1 and 2 were in contact making use of MO28 and MO30 mobile phones which they had in their respective possession. All the three allegedly trespassed into the office of the deceased and there in prosecution of the common object of the conspiracy, they attacked the deceased, strangulated him and caused his death. The prosecution has a case that an attempt was made to cause his death by passing electric current. But that attempt did not succeed and that is why they resorted to manual strangulation and smothering of the deceased. The miscreants went away from the scene of the crime unnoticed by anyone. The deceased did not go home (his house was adjacent to his office) as usual on that evening to watch the T.V. news and D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 6 his wife contacted PW1 a young Advocate neighbour. On that note of alarm, PW1 went to the office of the deceased and it was he who found the deceased lying dead there. A portion of MO1, MO2, MO6 and MO11 were found at the scene. The prosecution has a case that MO12 towel was found to be missing from the scene of the crime. PW1 lodged Ext.P1 complaint before the police. Ext.P1(a) FIR was registered by PW43 on the basis of Ext.P1. The police had no clue of the possible offenders. It appears that for some period initially they groped in the dark. Ultimately, siphoning out of the funds was ascertained and the police resolved the mystery and identified the conspirators/offenders. Final report was filed by PW46 after completing the investigation.
4. The case was committed to the Court of Sessions. Cognizance was taken by the learned Sessions Judge. The accused denied the offences alleged against them. Thereupon the prosecution examined PWs 1 to 46 and proved Exts. P1 to P85. Mos 1 to 42 were also marked by the prosecution.
5. In the course of cross examination of witnesses and when examined under Section 313 Cr.P.C., the 1st accused, the alleged principal offender did not dispute the drawal of a total amount of Rs.8,30,000/- (Rupees Eight Lakhs and Thirty D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 7 Thousand only) under Exts. P18, P19 and P20 by him. He took up a plea that the said amount as also MO28 mobile phone were handed over to him by his master, the deceased, voluntarily. Possession of those did not amount to or indicate any culpable act, it was urged. Accused Nos.2 and 3 took up a defence of total denial. The accused were called upon to enter on defence. Dws 1 and 2 were examined by the 3rd accused. Exts. D1 to D7 were also marked on the side of the accused in the course of the trial.
6. The learned Sessions Judge on an anxious evaluation of all the relevant circumstances sailed to the conclusion that conspiracy between accused Nos.1 to 3 has been established satisfactorily. The court further found that the evidence available on record satisfactorily establishes the complicity of accused Nos.1,2 and 3 for the offences alleged against them. The court found that the involvement of the 4th accused in the crime and in the commission of the offence has not been established satisfactorily and conceded to the 4th accused, the benefit of doubt. Accordingly, the court below proceeded to pass the impugned verdict of guilty, conviction and sentence against accused 1 to 3. As stated earlier, the 1st accused faces a sentence of death for the offence under Section 302 IPC and the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 8 other two accused/appellants face a sentence of imprisonment for life. We are not at this juncture adverting to the various other sentences imposed.
7. Detailed arguments have been advanced before us by the learned counsel for the appellants Shri J.S.Ralph and the learned Public Prosecutors Shri K.J.Mohammed Anzar ( in the D.S.R.) and Shri Noble Mathew (in the Crl.Appeals). The learned counsel for the appellants assails the impugned verdict of guilty, conviction and sentence on the following grounds.
(i) The court below ought to have held that the prosecution case resting on circumstantial evidence has not been established satisfactorily and that the appellants/accused are entitled, at any rate, to the benefit of doubt.
(ii) The conviction under Section 201 IPC after entering a conviction under Section 302 IPC is at any rate legally unsustainable and opposed to accepted and settled practice.
(iii) In the absence of a specific charge against the 1st accused, his conviction under Section 302 IPC principally and the sentence of death D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 9 imposed for the said offence is legally unsustainable.
8. The learned Public Prosecutors on the contrary assert that there is satisfactory proof beyond doubt to support the verdict of guilty and conviction of all the three appellants. The learned Prosecutors further contend that this is certainly a case falling within the sweep of 'rarest of rare cases' where the imposition of the sentence of death on the 1st accused by the court below is absolutely justified.
9. We shall now proceed to consider the contentions. At the outset, we must mention that an appellate judgment is and must be read in continuation of the judgment of the trial court. It has to be read and understood in that manner. The court below has narrated oral and documentary evidence relied on by the prosecution and the defence in detail. It is unnecessary for us to attempt to re-narrate all the relevant pieces of evidence afresh in this appellate judgment. We may advantageously observe that the oral evidence of PWs 1 to 46 has been read to us in detail by the learned counsel for the appellants. We have been taken through the oral evidence of Dws 1 and 2 also. Exts.P1 to P85 and Exts. D1 to D7 have been also read over to us D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 10 in detail. We have anxiously considered all these relevant pieces of evidence. The same have been discussed at the Bar. We shall, though we are not re-narrating the relevant pieces of evidence, advert to the relevant pieces of evidence as and when necessary in the course of discussions in this appellate judgment.
10. At the outset, we must note two crucial aspects. The prosecution relies on circumstantial evidence and has not been able to trace any eye witness or secure the services of any approver/accomplice. The prosecution case rests only on circumstantial evidence. It is too trite to require reference of any precedents; but we shall remind ourselves that in a case resting on circumstantial evidence, the burden is heavily on the prosecution to prove all circumstances satisfactorily by cogent evidence. Such circumstances must form strong links which together constitute a strong chain of circumstances, which can point unerringly to the guilt of the accused. It must also be ensured that such chain of circumstances effectively excludes and rules out the possibility of any hypothesis of innocence of the accused.
11. The second aspect that we have to advert to is the fact that it would be totally imprudent and artificial for a court to D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 11 look for direct ocular testimony to prove the prosecution's case of conspiracy. A conspiracy inherently and by its very nature is conceived by the conspirators in secrecy and confidentially and the prosecution cannot be found fault with if the prosecution is unable to produce any direct evidence of such conspiracy before court.
12. Having thus reminded ourselves of these two axiomatic premises, we shall now have a look at the nature of the circumstances relied on by the prosecution to drive home the charge against the accused. We shall discuss these circumstances in greater detail, later. But, initially, we shall only attempt to narrate the circumstances. They are:
(1) That the deceased met with homicidal death by strangulation at his office in the heart of the Cochin City at about 7.15 p.m. on 12.7.2007.
There are also satisfactory indications to suggest that an attempt was made to electrocute him.
(2) Inherently and on broad probabilities, the crime could only be the result of a conspiracy by the miscreants. Accused Nos.2 and 3 have no trace of any motive against the deceased.
D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 12 (3) The 1st accused had siphoned out funds clandestinely from the account of the deceased and he had every reason to entertain a motive to liquidate the deceased.
(4) The 3rd accused had helped the 1st accused in his attempt to clandestinely siphon out an amount of Rs.3 lakhs under Ext.P19 on 10.7.2007.
(5) MO28 mobile phone stolen by the 1st accused from his master, the deceased, was handed over by him to the 2nd accused, another conspirator. (6) There were frequent telephone calls between the 1st and 2nd accused using MO28 and MO30 cell phones on days, immediately prior to the incident.
(7) Accused Nos.2 and 3 had embarked on a spree to procure materials to implement the purpose of the conspiracy by the conspirators; they had procured a motor cycle under Ext.P35, MO1 cotton, MO6/13 plastic rope and a pin and electric wire of which MO11 is a part.
D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 13 (8) Presence of accused Nos.1 to 3 at or near the scene of the crime is indicated by the telephone calls between them at or near the scene of the crime immediately prior to the commission of the crime.
(9) MO2, a wrist metal bangle belonging to the 3rd accused happened to be available at the scene of the crime.
(10) The 3rd accused attempted to abscond and conceal his presence after the occurrence.
(11) Subsequent to the crime, the 1st accused was involved in a mala fide attempt to make documents (Exts. P6 and P7) to explain the ill gotten money.
(12) MO12, a towel which was available at the scene of the crime was recovered from its place of clandestine disposal near the house of the 1st accused as pointed out by the 1st accused to the Investigating Officer.
(13) Some cotton, which is now kept as part of MO1 was recovered by the Investigating Officer as D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 14 pointed out by the 3rd accused after his arrest and the same was part of the other part of MO1 seized from the scene.
(14) The 2nd accused made an extra judicial confession of the involvement of accused Nos.1 to 3 in the murder of the deceased, to PW16.
(15) MO13 which was similar to MO6 found at the scene of the crime was recovered along with MO12 by the Investigating Officer as pointed out by the 1st accused after his arrest.
13. We shall anxiously consider the criticism that these circumstances have not been satisfactorily established. We shall take up the circumstances one after the other.
14. Regarding the first circumstance, we find that there is no serious dispute. The deceased had met with homicidal death on 12.7.2007. Of course, we note that there is some inconsequential dispute as to whether the deceased was already dead when PW1 saw him or he had breathed his last later while he was removed to the hospital. That controversy does not appear to be relevant in any way. The mere fact that PW4, the paramedical technician from the Medical Trust Hospital felt that D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 15 everything may not have been over when he saw the deceased and took him to the ambulance is according to us not in any way crucial or vitally relevant. All indications must suggest to us that the deceased was dead even when PW1 saw him. That the death was homicidal and that there was an attempt to electrocute him are seen established satisfactorily by the oral evidence of PW35 and Ext.P46 postmortem certificate. There is no serious dispute raised before us about the cause of death. The whole gamut of the dispute is only about the responsibility for the death. We hold that the first circumstance has been established satisfactorily.
15. The second circumstance relied on by the learned Prosecutors before us is that the murder of the deceased must have been the work of conspirators who had schemed and planned the operation. On this aspect also, we do not entertain a semblance of doubt in the light of the totality of the facts and circumstances. On this aspect also, we find no scope for dispute. The miscreants, whoever they be, had done their homework well and had come to the scene of the crime with the deliberate intention of liquidating the deceased. That there must have been a conspiracy hatched by the miscreants, whoever they were, is D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 16 clear from the totality of circumstances. Further, accused Nos.2 and 3 are not shown to have any motive against the deceased or prior acquaintance with the 1st accused. If accused Nos.1 to 3 are found to have acted in concert, the existence of a conspiracy must be held to have preceded definitely. It is of relevance to note that accused Nos.1 to 3 have no case that they were known to each other earlier, though it is the case of the prosecution that the 4th accused was known to the 1st accused earlier. We hold that the 2nd circumstance is also proved.
16. The third circumstance is that the 1st accused had clandestinely siphoned out funds to the tune of Rs.8.30 lakhs from the account of the deceased under Exts.P18 to P20. Those cheques do not bear the signature of the deceased. Signatures therein, the expert testimony confirms, were not affixed by the deceased and were affixed by the 1st accused. It is unnecessary to delve deeper into that controversy, as the 1st accused has made a clean breast and has told the court that the cheques were not signed by the deceased; but were signed by him. He took up a defence that his master, the deceased, had permitted him to sign cheques on his behalf, - i.e., a blanket permission was given to the 1st accused to forge the cheques by affixing the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 17 signature of the deceased and withdraw money. Less said about this theory, the better. Criminal trial cannot be an avenue for fanciful flight of imagination. Even the version of an accused has to stand the test of reasonableness and acceptability. In one breath, the 1st accused suggests that his kind and considerate employer had given him money to meet personal requirements. But, surprisingly, it is stated that the deceased did not sign the cheques, but permitted the 1st accused, his Clerk of about six months' standing to sign the cheques in his name. Bottom is knocked out of this theory that the deceased had willingly given this amount of Rs.8.30 lakhs to him, when we consider the fact that the first accused did not collect the amounts himself, issued them in the names of others, got them collected through some others and deposited the proceeds not in his own account, but in the account of somebody else. We are in these circumstances absolutely certain that the theory of the deceased voluntarily handing over the amount of Rs.8.30 lakhs to the 1st accused can and must be rejected outright. It is true that the first instance of forgery and clandestine withdrawal escaped the notice of the deceased. This emboldened the 1st accused to embark on the misadventure. The accused must have been absolutely certain D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 18 that if such big amounts as Rs.3 lakhs and Rs.5 lakhs, as withdrawn under Exts.P19 and P20, were siphoned out, the deceased was bound to detect the same. To avoid detection and to save himself, the 1st accused can certainly be held to entertain a motive to do away with the deceased. He, the available indications suggest unmistakably, must have wanted to liquidate the deceased to avoid detection of his crime and to help him to keep for himself the ill gotten wealth. The third circumstance, we find, is thus established without any semblance of doubt.
17. The prosecution relied on the fourth circumstance that the 3rd accused, the conspirator extended help to the 1st accused to facilitate clandestine withdrawal of the amount on 10.7.2007. On that aspect also, we find no semblance of doubt. We have identification from the bank staff about the person (3rd accused) who encashed the amount. They have shown satisfactory reasons as to why they remembered that fact. Of course, as observed by the learned Sessions Judge, it does not bring credit to the bank officials that they did not alertly intervene and prevent such clandestine siphoning out of funds. But the fact remains that the involvement of the 3rd accused is proved. The evidence of the handwriting Expert also confirms D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 19 and is in tandem with the evidence of bank officials that it was the 3rd accused who withdrew the amount from the account using Ext.P19 cheque. The prosecution relies on this aspect not only to prove the motive, but also as one of the early indications of the existence of the conspiracy and of Accused Nos.1 and 3 being conspirators. We hold that the circumstance is proved and the inevitable inference that follows, points to the existence of a conspiracy and Accused Nos.1 and 3 being conspirators. The 4th circumstance also is thus eminently established, we confirm and concur with the court below.
18. The 5th circumstance relied on by the prosecution is that MO28 mobile phone belonged originally to the deceased. That was found missing. We have documentary evidence to show that M.O28 belonged originally to the deceased. There can be no doubt on that aspect at all. Specific identification with the aid of technology is available. That the International Mobile Equipment Identification (I.M.E.I) number of the equipment (M.O28) tallies with what has been purchased by the deceased is proved by PW8, the son of the deceased, with the help of documents. Ext.P4 warranty card and M.O37 cover are all helpful to come to a safe conclusion on this aspect. The 1st D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 20 accused claims that the deceased had given this as a gift/present to the accused. The theory rebels against reason, commonsense and logic. If that were so, it passes one's comprehension as to why the 1st accused/appellant did not himself use the same. M.O28 is seen recovered from the 2nd accused after his arrest. On that aspect of the testimony, no reasonable doubt survives. According to us, this fifth circumstance is established satisfactorily that M.O28 stolen from the possession of the deceased by the 1st accused was available with the 2nd accused, another conspirator, and the same was recovered after his arrest on 16.08.2007. The fifth circumstance is also thus seen established.
19. The prosecution now relies on the sixth circumstance - that there was frequent contacts between the 1st and 2nd accused using M.O28 and M.O30 cell phones on and prior to the date of occurrence. We have the evidence of persons from the cell companies/services on this aspect. Though this circumstance is not in terms admitted, satisfactory evidence is available to prove the contact between the 1st and 2nd accused using M.Os 28 and 30 cell phones from 01.07.2007 to 12.07.07. This circumstance by itself may be capable of several interpretations. But the fact D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 21 remains that no specific explanation has been offered for such contacts between the 1st and 2nd accused repeatedly during the relevant period. The prosecution relies on this circumstance to drive home its case that the 1st accused had entered into the conspiracy with the 2nd accused also. We hold that the said circumstance is established satisfactorily.
20. According to the prosecution after the conspirators put their heads together and hatched the conspiracy to liquidate the deceased after siphoning out the funds from his account, there was feverish activity by the 2nd and 3rd accused to collect material for the purpose of implementing the conspiracy. Section 10 of the Evidence Act may in this context be relevant. When the conduct of the conspirators acting in pursuance of the conspiracy is proved, such evidence can be used as evidence not only against the conspirators whose conduct is proved, but also against other conspirators who can reasonably be assumed to be conspirators on the basis of the evidence. This principle has its foundation in the law relating to agency. Accused 2 and 3 had - first of all procured a motorcycle on rent/lease under Ext.P35 from PW22. The procurement is made on 09.07.2007. Similarly we find accused 2 and 3 had procured M.Os 6/13 from PW26. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 22 We also have the evidence of the 2nd and 3rd accused procuring M.O1 cotton from PW41. We have also the evidence of the 2nd and 3rd accused of procuring an electric pin and wire like M.O11 from PW25. Of course, the evidence of these witnesses have been criticised and attacked. The court below had chosen to place reliance on their testimony. Inherently and on broad probabilities, we find absolutely no reason to doubt, suspect or discard such testimony. They are not shown to have any motive against anyone of the accused persons. They were traced after the Investigating Officer had opportunity to interrogate the accused after their arrest. These pieces of conduct of accused 2 and 3, definitely indicate, their activity as conspirators after the probable date when the conspiracy was hatched and they started working towards the end of achieving the conspiracy. The seventh circumstance is also thus established satisfactorily and such evidence has impact and implication while considering the involvement of all the conspirators.
21. The eighth circumstance relied on by the prosecution is that all the accused must have been present somewhere near the scene of the crime at about the time when the incident took place. The prosecution has a specific theory on this aspect. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 23 According to them, the 1st accused must have gone to the office of the deceased first to ensure that all circumstances are safe to carry out the operation. From there, the 1st accused, it is suggested, had given a call/missed call to the 2nd and 3rd accused in M.O28 cellphone in the possession of the 2nd accused. They were available somewhere near the scene of the crime. The last such call is found to be at about 6.45 p.m on 12.07.2007. It is the case of the prosecution that the conspirators were converging at the scene of the crime and when that call at 6.45 p.m went from the 1st to the 2nd accused from M.O30 to M.O28, that was the final clear signal for the other conspirators to join the 1st accused. The call originated from and was received from the Mobile Towers situated in the locality of the scene of the crime. We are certainly of the opinion that the eighth circumstance is a formidable circumstance against the 1st and 2nd accused to suggest that both of them were available at or near the scene of the crime on the date and time when the incident took place.
22. The prosecution relies on the nineth circumstance that M.O2, a wrist metal bangle of peculiar features, was available at the scene of the crime. In fact, this is the first piece D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 24 of circumstance which gave indication to the police of the presence of persons or outsiders in the room at the time when the offence was committed. The police believed that M.O2 belonged to whosoever had entered the office to commit the crime. Attempts were made to trace the owner of M.O2. It is the case of the prosecution that M.O2 belongs to the 3rd accused. In support of this case of the prosecution, they examined PW21 - a former employer of the 3rd accused. The ownership of M.O2 is certainly a crucial circumstance in the attempt to identify the offenders. The case of the prosecution that M.O2 belongs to the 3rd accused is indicated convincingly by the oral evidence of PW21. It is contended that PW21's evidence is unworthy of acceptance. PW21 is not shown to have any motive against the 3rd accused. That the 3rd accused was working with PW21, it is significant, is not disputed. Of course the contention is raised that more intimate persons, who had interacted with the 3rd accused, could have been traced and their evidence could have been procured on the question whether M.O2 belongs to the 3rd accused. The learned counsel for the appellant relies on the oral evidence of DWs 1 and 2 also on this aspect. They are the mother and a relative with whom the 3rd accused was residing in the absence D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 25 of his mother in India. They stated that M.O2 does not belong to him. We find absolutely nothing irrational, improper or unreasonable in the court below taking the view that the oral evidence of PW21 can safely be believed and the same deserves to be believed in preference to that of the interested DWs 1 and
2. We reckon this nineth circumstance as crucially relevant as that establishes that the 3rd accused was present at the scene of the crime when the deceased was attacked. This circumstance is thus satisfactorily established.
23. The prosecution relies on the fact that the 3rd accused was making himself scarce after the incident. Accused 1, 2 and 4 were arrested on 16.08.2007. The 3rd accused was not apprehended. The prosecution relies on the evidence of PWs 23 and 24 as also on Exts.P36 and 37 to show that the 3rd accused had resided in that hotel for 3 nights from 01.09.2007 to 03.09.2007. He did not give his name correctly. He occupied the room under an assumed false name. At that point of time, the 1st, 2nd and 4th accused had already been arrested and interrogated and the 3rd accused must certainly have anticipated his arrest. The prosecution relies on the subsequent conduct of the 3rd accused of absconding and concealing his true identity as D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 26 an indication of his complicity. The signature of the occupant of PW23's hotel in Exts.P36/37 has been identified to be that of the 3rd accused by the handwriting expert, thus offering clinching evidence for this circumstance relied on by the prosecution. The tenth circumstance is also thus established satisfactorily.
24. The eleventh circumstance relied on by the prosecution is the conduct of the 1st accused of making feverish attempt to make it appear that he had legally obtained the amount. The prosecution relies on his conduct of creating a non genuine agreement for sale of an item of property, ie. Ext.P7. Ext.P7 is purported to be an agreement under which PW12 had agreed to purchase an item of property, over which the 1st accused does not admittedly have any rights. His father, it is asserted, has some rights in the property. The evidence of PW12, the alleged intending purchaser in Ext.P7 as also PW9, a relative of the accused, shows clearly that it was a non genuine transaction and the attempt apparently was to justify and explain possession of money by the 1st accused. It will not be inapposite straight away to note that his conduct of depositing the amount of Rs.6 lakhs in the account of PW10 also reveals, confirms and corroborates such attempt to either conceal receipt of the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 27 amount or to find an explanation for the ill gotten wealth. Ext.P6 agreement under which the 1st accused allegedly purchased a car belonging to the father of PW18 by entering into an agreement with PW18 is also relied on by the prosecution. What is of relevance regarding Ext.P6 is only that the accused had money with him to purchase a car, but did not purchase the car in his name. The prosecution has a case that it was undervalued. Actually Rs.50,000/- was paid, but only Rs.25,000/- was shown in the document. We are unable to assume that this undervaluation has any relevance for the 1st accused to explain the amount of money that he allegedly had in his possession. What is relevant according to us is only the fact that the purchase of car under Ext.P6 was not made in the name of the accused; but it was made only in the name of another person and not the 1st accused. This eleventh circumstance is also thus relevant to the extent that the 1st accused had made an attempt to artificially create documents to show source for the ill gotten money or at least a part of it and that he did not venture to purchase the car in his name. The eleventh circumstance is also thus found to be established satisfactorily and relevant in the facts and circumstances of the case.
D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 28
25. We now come to the twelveth circumstance relied on by the prosecution namely recovery of M.O12 by the Investigating Officer under Ext.P34. The evidence of the Investigating Officer and the evidence of attesting witnesses and the document Ext.P34 intrinsically show that M.O12 with blood stain on it, (as proved by the report of Chemical Examination) was recovered from a stream near the house of the 1st accused after his arrest. It is the case of the prosecution that this M.O12 towel was available prior to the incident in the office of the deceased. It was found missing from there. Nobody observed that this was missing after the accident. It is only after recovery of the towel that they came to notice that this towel was missing. The learned counsel for the appellants argues that this is a subsequent manipulation by the investigator to falsely implicate the accused. We are unable to agree. We find no reason to discard the evidence of the police officer on this aspect of his testimony. His testimony is supported eminently by the intrinsic corroboration available from the contents of the recovery mahazar. According to the prosecution, from the scene of the crime this towel must have come in handy to wipe the blood which must have fallen somewhere - on the person of the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 29 offenders and that towel happened to be removed from the scene of the crime. That is the nexus between M.O12 and the crime that the prosecution wanted to establish. We have the evidence of PWs 6 and 7, a junior advocate attached to the deceased and his part time typist to confirm that M.O12 was available prior to the occurrence in the office and the same was found to be missing after the occurrence. The fact that PWs 6 and 7 or any other did not perceive the missing of M.O12 from the scene of the crime on the date of the occurrence or any later date until the recovery of M.O12, is not, according to us, a valid or satisfactory reason to discard the evidence about recovery of M.O12. We hold that this twelveth circumstance relied on by the prosecution has been established satisfactorily and when established, it affords crucial link to establish the presence of the 1st accused at the scene of the occurrence at the time of the incident.
26. As the thirteenth circumstance, the prosecution relies on the recovery of M.O1, as pointed out by the 3rd accused, by the Investigating Officer under Ext.P59 mahazar. The prosecution also relies on the evidence of the expert that M.O1 cotton which was recovered from the scene of the crime tallied D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 30 with the cotton recovered after the arrest of the 3rd accused as pointed out by him. We note that both pieces of cotton were kept together in the course of the trial after it was returned by the Chemical Examiner. We have satisfactory evidence to show that the part of M.O1 recovered from the scene of the crime immediately after the occurrence tallies with the cotton which was recovered after the arrest of the 3rd accused under Ext.P59 and both of them support the evidence of purchase of M.O1 by accused 2 and 3 from PW41 prior to the occurrence. This circumstance is also proved satisfactorily.
27. As the fourteenth circumstance, the prosecution relies on the extra judicial confession made by the 2nd accused to PW16. In such extra judicial confession, he is alleged to have stated to PW16 that he along with the 1st and 3rd accused had indulged in commission of murder of an Advocate. We have no precise and authentic evidence of the date on which such confession was made. PW16 refers to the date of the confession as 2 weeks prior to the arrest of the 2nd accused. The 2nd accused was arrested on 16.08.2007 and assuming that the 2 weeks mentioned by PW16 means 2 X 7 = 14 days, the alleged extra judicial confession must have been made on 02.08.2007. It is the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 31 case of PW16 that in such confession, the 2nd accused had stated that the incident had taken place a month earlier. Assuming that the period of one month mentioned by the 2nd accused to PW16 means 30 days (30 X 1), the incident must have taken place on 02.07.07. But the alleged incident had taken place only on 12.07.07. Hence the theory of extra judicial confession must be rejected, argues counsel. The learned counsel further argues that an extra judicial confession is a weak piece of evidence inasmuch as it is very easy to plant such false evidence with the help of obliging witnesses. Law traditionally has approached the evidence of extra judicial confession with reluctance, reservation and great caution, points out the counsel. In these circumstances, it is submitted that reliance may not be placed on the oral evidence of PW16. The court below has not placed reliance on the oral evidence of PW16 though the court below has expressed itself unambiguously that it finds no reason not to believe PW16. The learned counsel for the appellant submits that the evidence of a person about extra judicial confession has to be tested on the well accepted touchstone before it is accepted. The counsel submits that it is only natural to ask a question as to why at all the accused must have confessed to D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 32 such a person. The learned counsel argues that going by the version of PW16, the 2nd accused did not seek and PW16 did not offer any assistance or help for the 2nd accused. There was no purpose why such disclosure should have been made. In these circumstances the evidence of PW16 about extra judicial confession by the 2nd accused must demand and receive a very careful and cautious approach, submits the learned counsel for the appellant.
28. We have no hesitation to agree. Evidence of extra judicial confession must be viewed with considerable amount of care and caution. The evidence of PW16 shows that such a confession was made. No prudent mind can be imprudent to assume that when PW16 stated that the confession was made prior to 2 weeks of the date of arrest, he meant that 2 X 7, ie. 14 days. Similarly it would be a totally artificial and improper approach to evidence if we were to assume that when the 2nd accused stated to PW16 that the crime had taken place a month prior to the occurrence he was referring to 30 days specifically. So reckoned, we do not attach any crucial significance to the gap of time between 02.07.07 and 12.07.07, ie. the gap between the date so ascertained and the actual date of occurrence. That gap D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 33 of time does not in any way appeal to us as crucial or relevant to persuade us to discard the evidence of PW16.
29. PW16 is not a stranger to the 2nd accused. Evidence shows that both are neighbours residing in 2 houses in the neighbourhood - a Vettuva Colony. They belong to the same backward community. They were schoolmates also. As to why a person makes an extra judicial confession, no rigid or dogmatic standards can be adopted. Many a time we find it is the prick of the conscience and the yearning to share an information which is kept in the secret chambers of the mind which causes pain and anguish which manifests and expresses itself as a confession. Care and caution -- yes, definitely. But undeserved doubt and suspicion -- certainly not. It is thus that we approach the evidence of PW16. The evidence of PW16 in the course of cross examination does not at all even remotely suggest that PW16 is a person who will ever speak falsehood against the 2nd accused. We are persuaded to agree with the learned Public Prosecutor that the court below squandered the advantage of extra judicial confession which in the circumstances of the case could have been taken into reckoning along with the other inputs to afford assurance, inspiration, confirmation and corroboration for the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 34 other evidence available in the case. We are, unhesitatingly, accepting the extra judicial confession made by the 2nd accused to PW16 to lend assurance to the case of the prosecution in its totality.
30. We must immediately refer to Section 30 of the Evidence Act. Confession of a co-accused is relevant and admissible not only against the maker of the confession, but also against the co-accused, who along with the maker of the confession is facing trial. Accused 1 and 3 are also facing trial in the same prosecution along with the 2nd accused and the acceptable evidence of extra judicial confession made by the 2nd accused to PW16 that the crime has been committed by him along with the 1st and 3rd accused can certainly be made use of to lend assurance for the version of the prosecution and the other pieces of evidence made available against accused 1 to 3. We accept the finding of the court below that the extra judicial confession can be relied on. But we are unable to agree with the court below that the said acceptable evidence of PW16 need not/cannot be made use of against the 2nd accused or against accused 1 and 3.
D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 35
31. As the fifteenth circumstance, the prosecution relies on the circumstance that M.O13 was recovered, as pointed out by the 1st accused after his arrest by the Investigating Officer under Ext.P34. The court below appears to have not noticed the significance of this circumstance. Evidently, we must assume, that the significance of this circumstance was lost to the prosecution also when the matter was being argued before the court below. The learned Public Prosecutors point out that this circumstance must also be taken into reckoning while considering the complicity of the 1st accused. The importance of the circumstance is that a plastic rope like MO6/13 was purchased by the co-conspirators, the 2nd and 3rd accused, from PW26. A portion of that plastic rope was found left at the scene of the crime. It was recovered under the scene mahazar as M.O6. It is the case of the prosecution that the plastic rope was procured, was cut into 2 and was carried by the conspirators to the scene of the crime to facilitate tying of hands and feet of the victim to facilitate electrocution of the deceased. After the arrest of the 1st accused when he was interrogated he led the police to a stream near his house and pointed out M.O13 and M.O12 which were recovered under Ext.P34. Both M.O12 and D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 36 M.O6 were sent to the expert and the report of the expert- Ext.P85 shows that they are identical. The prosecution argues that this circumstance is of crucial relevance as that links the 1st accused with the incident proper as also the conduct of the co- conspirators (A2 & A3) procuring the plastic rope from PW26 in furtherance of the conspiracy, which piece of evidence can be used against the 1st accused under Section 10 of the Evidence Act. We note that this fifteenth circumstance, though not specifically relied on by the court below, can also be reckoned as a relevant circumstance against the accused.
32. The next question is whether these fifteen circumstances, which have been proved as already discussed and accepted by us, are sufficient to come to a safe conclusion about the existence of conspiracy, the purpose of conspiracy and the role of accused 1 to 3 as conspirators. We have anxiously evaluated all the circumstances. In a case resting on circumstantial evidence, each circumstance may be capable of several interpretations. A court is not mainly concerned with the independent explanation for each circumstance offered by the accused. The question is whether the circumstances form a chain and the cumulative effect of the links of the chain points to D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 37 the guilt of the accused unerringly and excludes every reasonable hypothesis of innocence of the accused. After having evaluated all circumstances very anxiously and alertly we come to the conclusion that the court below was eminently justified in coming to the conclusion that the prosecution has succeeded in establishing that there was a conspiracy between accused 1 to 3 and that accused 1 to 3 in prosecution of the object of the conspiracy and in furtherance of their common intention had trespassed into the office room of the deceased and had indulged in culpable overt acts by which the murder of the deceased was secured. Not a semblance of doubt is left in our mind on the basis of these circumstances about the complicity of the accused. The verdict of guilty is thus found to be absolutely justified.
33. There is a contention that on the verdict of guilty entered on facts, the conviction is not justified. According to the counsel for the appellant, so far as the 1st accused is concerned, this is most crucial because the 1st accused has been sentenced under Section 302 I.P.C principally and a sentence of death has been awarded under Section 302 I.P.C principally. There is no charge framed by the court against the 1st accused for the offence under Section 302 I.P.C principally. The counsel D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 38 laboriously contends that conviction under Section 302 I.P.C principally is not justified. Consequently the sentence of death must also go, contends the counsel very vehemently.
34. We do note that the court below has, while imposing the sentences, chosen to impose the sentence of death for the principal offence under Section 302 I.P.C. But we look at para.86 and 87 of the impugned judgment. The court below had convicted all the 3 accused under Section 302 r/w 120 B, 302 r/w 34 I.P.C, 450 r/w 34 I.P.C and 201 r/w 34 I.P.C. The 1st accused has, of course, been convicted for the offence under Section 109 r/w 302 I.P.C also. What we intend to note now is that the court below while convicting the accused had not convicted the accused for the offence under Section 302 I.P.C principally. Such a conviction is not there at all.
35. For a moment we shall assume that conviction has been entered under Section 302 r/w 34 I.P.C, but the sentence was imposed only under Section 302 I.P.C. A perusal of the impugned judgment clearly shows that no sentence has been imposed on the 1st accused under Section 302 r/w 34 I.P.C. Conviction under Section 302 r/w 34 I.P.C is virtually a conviction under Section 302 I.P.C. Section 34 I.P.C does not D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 39 create a new offence. It is only rule of evidence enabling the conviction of accused for the offence committed by a co-accused, if such acts have been committed in furtherance of the common intention of all. In these circumstances, if conviction has been entered under Section 302 r/w 34 I.P.C and the sentence is imposed under Section 302 only, that cannot be said to offend any principle of law. The sentence of death imposed on the 1st accused under Section 302 I.P.C is only a sequel to the verdict of guilty and conviction under Section 302 r/w 34 I.P.C. It is not a different charge at all. We repeat that Section 34 I.P.C does not create a new offence and incorporates only a rule of evidence enabling the rendering of a finding against a co-accused. Hence if conviction is under Section 302 r/w 34 I.P.C and the sentence happens to be imposed under Section 302 I.P.C without referring to Section 34 I.P.C, that cannot invalidate or vitiate the sentence imposed under Section 302 I.P.C. The arguments laboriously canvassed and advanced on the ground that no charge has been raised principally under Section 302 I.P.C and the charge has been raised only with the aid of Section 34 I.P.C, cannot in these circumstances be held to be of any significance. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 40
36. The court below, we find, has convicted the 1st accused under Section 302 r/w 109 I.P.C. Having entered the conviction under Section 120 B r/w 302 I.P.C and 302 r/w 34 I.P.C, a different conviction under Section 302 r/w 109 I.P.C does not appear to be necessary. To that extent, the conviction and sentence imposed under Section 302 r/w 109 I.P.C was not essential. The court below appears to have been confused because of the charge under Section 120 B. In a charge under Section 120B for an offence actually committed, the offender can be convicted as if he had abetted the offence. This appears to have weighed with the court below to enter a conviction and sentence under Section 302 r/w 109 I.P.C. That conviction and sentence under Section 302 r/w 109 I.P.C can be vacated inasmuch as conviction and sentence is already entered under Section 120B r/w 302 I.P.C and Section 302 r/w 34 I.P.C
37. That takes us to the last limb of the contention on merits that conviction under Section 201 I.P.C is not justified. The question whether a principal offender convicted under Section 302 I.P.C can be convicted again under Section 201 I.P.C for disappearance of evidence of commission of the offence under Section 302 I.P.C is, according to us, not free from doubt. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 41 The principal offence must be distinguished from an offence after the event. Under English law it appears to be trite that a principal offender cannot be convicted as an accessory after the crime. The High Courts in India had taken different views, but the question, it is commonly understood, has been settled in the decision of the Supreme Court in Kalawati v. Him. Pra. State [AIR 1953 S.C 131]. In para.22 of Kalawati v. Him. Pra. State, the following passage appears:
"Para.22:........... ........................... .................. .................................................................................. Section 201 is not restricted to the case of a person who screens the actual offender, it can be applied even to a person guilty of the main offence, though as a matter of practice a Court will not convict a person both of the main offence and under S.201. ............................................ ........ .........................................."
38. Our attention has also been drawn to the observations in the last paragraph of Mangal Singh v. King-Emperor [AIR 1937 Privy Council 179]. We extract the same below:
"Their Lordships should perhaps add that they have reached the conclusion stated apart altogether from consideration of the terms of S.201 I.P.C. It D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 42 appears to them that the proper avenue of approach in this case-particularly having regard to the structure of the charge, is first and foremost, to consider whether the case under S.302 I.P.C, has been made out. If so that is an end of the matter. If, on the other hand, their Lordships thought that the case under that section was not proved, then, and only then, would it be proper to consider whether an offence under S.201 I.P.C, had been established."
(emphasis supplied)
39. Reliance is also placed on the decision in Chinna Gangappa v. Emperor [AIR 1930 Madras 870]. We are not delving deeper into the question as both the privy council decision in Mangal Singh v. King-Emperor (supra) and the Supreme Court's decision in Kalawati v. Him. Pra. State make it very clear that after entering a verdict of guilty, conviction and sentence for the principal offence under Section 302 I.P.C, a further conviction of the same offender under Section 201 I.P.C cannot be entered at least as a "matter of practice". If legally a conviction can be entered, we are at a loss to understand how a practice can be justified under which such a conviction and D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 43 sentence cannot be imposed. We leave the matter there, but are certainly of the opinion that the question will have to be considered in greater detail in an appropriate case by the Courts. We feel that the contention of the appellant that the factual scenario in Kalawati had persuaded the judges to decide Kalawati in that manner and make such observations is justified. The reference to the Constitution Bench was not on that question at all. In Kalawati, the accused was acquitted under Section 302 and conviction was entered under Section 201 I.P.C. The question primarily was whether in the absence of charge under Section 201 I.P.C, an accused can be convicted under Section 201 I.P.C when the charge was under Section 302 r/w 114 I.P.C alone. The observations were made under those circumstances. No conviction was simultaneously entered both under Section 302 I.P.C and Section 201 I.P.C. The basis of the policy or practice of not convicting an accused both under Sections 302 and 201 I.P.C was not considered or discussed. But following the binding precedent of the Constitution Bench in Kalawati v. Him. Pra. State, we take the view that a further conviction under Section 201 I.P.C after having entered conviction for the principal offence under D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 44 Section 302 I.P.C is unnecessary and not justified at least as a matter of practice. We therefore vacate the verdict of guilty, conviction and sentence under Section 201 I.P.C.
40. That perhaps takes us to the last question which is the only question to be decided in the Death Sentence Reference - ie. about the appropriate sentence to be imposed on the 1st accused. We had occasion recently to consider the question relating to identification of the rarest of rare cases as held in Bachan Singh v. State of Punjab [(1980) 2 SCC 684] in our common judgment in Navas v. State of Kerala in D.S.R No.4 of 2007 & Crl.Appeal No.162 of 2007 dated 09.02.2010 (which is not reported so far in any journal). Para.209 of Bachan Singh contains the quintessence of the law relating to imposition of death sentence and we extract that passage below:
Para.209:............................................................ A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
41. Subsequent attempts were made in various decisions to identify the rarest of rare cases in which the death sentence D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 45 alone was the appropriate sentence and the lesser alternative was unquestionably foreclosed. Reference must in this context be made to the decision in Machhi Singh v. State of Punjab [(1983) 3 SCC 470]. A three Judge Bench of the Supreme Court later in Swamy Shraddananda (2) v. State of Karnataka [(2008) 13 Supreme Court Cases 767] had occasion to consider this question again. Their Lordships in Swamy Shraddananda has taken the view that the lesser alternative is not a single alternative of an ordinary life sentence which virtually boils down, as per the prevalent practice to a sentence of imprisonment for 14 years. We have adverted to this aspect in great detail in Navas v. State of Kerala (supra) and we feel it not necessary to advert to the same again. Paragraphs 93 and 94 of Swamy Shraddananda which we extract below have created more options than the only option of imposing a sentence of imprisonment for life without any specification. It is now possible for the court to consider various other options also by prescribing appropriate riders to a sentence of imprisonment for life.
"Para.93:Further, the formalisation of a special category of sentence, though for an extremely few D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 46 number of cases, shall have the great advantage of having the death penalty on the statute book but to actually use it as little as possible, really in the rarest of rare cases. This would only be a reassertion of the Constitution Bench decision in Bachan Singh besides being in accord with the modern trends in penology.
94. In the light of the discussions made above we are clearly of the view that there is a good and strong basis for the Court to substitute a death sentence by life imprisonment or by a term in excess of fourteen years and further to direct that the convict must not be released from the prison for the rest of his life or for the actual term as specified in the order, as the case may be."
42. Even then, there can still be a class of cases which are outside all the options generated in Swamy Shraddananda to which the dictum in Bachan Singh will have to be applied and the extreme sentence of death imposed. Is the instant case one in which accused has to be identified to be one who deserves the extreme penalty of death? That is the only question that remains for consideration. The court below applying the Bachan Singh doctrine, had made a balance sheet of extenuating and aggravating circumstances. The balance sheet is heavily loaded against the accused and the aggravating circumstances galore. D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 47 We would certainly have felt that this is one such case which lies beyond Swamy Shraddananda and well within the sweep of the Bachan Singh doctrine. In addition to the circumstances enumerated by the court below, we find one more aggravating circumstance. This is a case of the 1st accused procuring the services of hired criminals. We have always felt that the one hiring criminals should stand closer to the death sentence than the hirelings whose services have been procured by him. Hirelings because of various circumstances including economic backwardness may be tempted to join the hirer. The hirer's must certainly be reckoned as a more deserving case to fall within the doctrine of Bachan Singh. The activities of goondas and hired criminals are on the increase and on the ground that the interests of deterrence demands dealing with such crimes with an iron hand also, we would think that a death sentence can be justified in this case. In that view of the matter, we feel that the 1st accused in this case stands perilously close to (if not within) the zone of death sentence as identified by the Bachan Singh doctrine.
43. But the only one extenuating circumstance which the court below has narrated is according to us a very formidable circumstance. We note that the 1st accused is a young person D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 48 born admittedly only on 02.04.1989. He belongs to the financially deprived class. His brother is victim to a strange disease - disproportionate growth of head and he was badly in need of money. Lure of affluence which he perceived appears to be the focal point that led him to the crime. When the first culpable incident, which went unnoticed, with the encashment of Ext.P18 forged cheque took place, he was aged 18 years, one month and 14 days old. When the dastardly crime was committed, he was aged 18 years 3 months and 10 days. Can a humane society and legal system condemn such a young criminal to death in the facts and circumstances of this case? That is the crucial question to be considered. Sublime humanity has always viewed the crime by a young person with concern, but with compassion. The 18 year old 1st accused has not blossomed in life yet. Unfortunately the criminal instincts got over him and circumstances and reasons (other than genetic) are there aplenty to explain why he strayed into a path of vice and crime. But is he lost to humanity? Can a system with concern for juvenile justice which saves a person below the 18 years from all sorts of punishment impose on such a young offender the capital punishment of death? Having rendered our anxious D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 49 consideration, we have no hesitation to agree that the civilisation and culture which the system, the courts and the law represent must persuade us not to impose the capital sentence of death on the offender. We are hence satisfied that this is a fit case, where considering the age and immaturity of the 1st accused offender, he should not be sent to the gallows. It is too early for civilisation to declare that the 1st accused is lost to humanity. We are therefore taking the view that the 1st accused must be spared of the sentence of death.
44. What is the appropriate sentence to be imposed in the light of the dictum in Swamy Shraddananda; this is the next question to be considered. We are convinced beyond doubt that an ordinary sentence of life is not sufficient in the facts and circumstances of the case. A graver sentence of life has to be imposed. We take note of the unsuppressed instincts of criminality in the 1st accused. We take note of the diabolic manner in which he had organised the crime. We take note of the fact that he had directed the crime against his employer who, on his own showing, has been kind and considerate to him. We take note that the victim was a helpless person aged about 76 years when he was attacked and murdered. We are saving the D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 50 1st accused of a sentence of death only because of his young age and immaturity as he has not received the full opportunity to blossom into his fullness in life. We are afraid that he may blossom into a confirmed criminal and therefore we feel that the society needs to be saved of the possible criminality of this individual. He has to remain in prison. Optimistic we are of the great potential of the human soul to repent and reform. He shall and must spend his time in prison to repent and reform. The correctional system in the jail has to help him to do the same. But we are convinced that we must impose a sentence of life with an appropriate rider to save the society from the possible criminality of such an individual.
45. It is not as though we are not hearing the cries of the society demanding retribution. We are conscious of that. We are fully aware that a sizeable section of society must be demanding sentence of death for this offender. They must be accusing this Court that it has shown undeserved sympathy merely on the ground of the young age of the 1st accused. But we cannot choose to swim with the emotional responses of the boisterous section of society. We have to sit back and reflect in cold sobriety. The punishment, which we must impose, must D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 51 reflect the response of the balanced and refined sections of the society. It is hence that we take the view that the 1st accused can be spared of a sentence of death, ensuring at the same time that the yearning for retribution of the community is also taken note of along with the need to protect the society from such confirmed criminality of the 1st accused.
46. We do in these circumstances take the view that imposition of a sentence of imprisonment for life with the rider, as permitted in Swamy Shraddananda (supra), that the 1st accused should not be released from the prison for a period of 35 years for any purpose (with the benefit of set off permitted under Section 428 Cr.P.C only) shall meet the ends of justice. We can hear the question being asked as to why the polity must suffer and meet the expenses of such a criminal to support him in prison for such a along period of time. The argument against expenditure of society on such a criminal is virtually against the legislative wisdom of the prescription of life sentence under the Penal Code and other penal laws. Imprisonment for life is a punishment accepted by the society and the legislature. Such a sentence of imprisonment for life necessarily involves the burden to maintain an offender in prison till his death meeting all his expenses. So D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 52 the whisper which we perceive, against the idea of the society investing huge amounts to keep the convict in prison for such a long period does not appeal to us at all.
47. We are satisfied that the sentences imposed for all other offences on the offenders are justified and do not warrant any interference.
48. In the result:
a) The death sentence reference is answered against the prosecution. We do not confirm the sentence of death. The appeals are allowed in part;
b) The verdict of guilty, conviction and sentence imposed on all the 3 appellants under Section 201 I.P.C is set aside.
Consistent with the practice mentioned in Kalawati v. Him. Pra. State (supra), we find it unnecessary to impose any sentence under Section 201 I.P.C on the appellants;
c) The verdict of guilty, conviction and sentence imposed on accused 2 and 3 on all other counts are upheld;
d) The verdict of guilty, conviction and sentence of the 1st accused/appellant under Section 120 B r/w 302 I.P.C and Section 450 r/w 34 I.P.C are upheld. In supersession of the sentence imposed on him under Section 302 I.P.C, he is sentenced under Section 302 r/w 34 I.P.C to undergo imprisonment for life with the rider, as permitted under Swamy Shraddananda, that he shall not be released from prison for a period of 35 years in all. He will of course be entitled for set off D.S.R No.2 of 2008 & Crl.Appeal Nos.1291/2008 and 268/2010 53 under Section 428 Cr.P.C. The conviction and sentence imposed on him separately under Section 302 r/w 109 I.P.C is set aside;
e) It is further directed that even thereafter when he is considered for release from prison, all facts shall be alertly adverted to and only thereafter the question of his release shall be considered.
(R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) rtr/-